2008 (1) TMI 713

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....i, JDR, for the Respondent. [Order (Oral)]. - This appeal arises from Order-in-Appeal No. 95/2006-C.E. dated 28-9-2006 passed by the Commissioner (Appeals) allowing the departmental appeal and directing the Assistant Commissioner to impose penalty on the assessee for violating Rule 13 of the Cenvat Credit Rules. The Commissioner (Appeals) has noted in the impugned order that the assessee had....

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....s predecessor having upheld the availment of Cenvat credit, noted that there was violation of Rules and, therefore, the Original Authority ought to have imposed penalty and has remanded the same. This is under challenge. 2. The learned Consultant submits that the Commissioner (Appeals), in their appeal, by his Order-in-Appeal No. 86/2006 dated 23-5-2005, has upheld the availment of Cenvat ....

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....pital Goods, which were not used in the manufacture of dutiable goods, then, penalty was imposable. Likewise, in the case of CCE, Jalandhar v. Ranbaxy Lab. Ltd. - 2005 (187) E.L.T. 337 (Tri. - Del.), it has been held that when wrongful availment of Cenvat credit has been taken, then, penalty is leviable. He also refers to the Apex Court judgment rendered in Gujarat Travancore Agency v. Commissione....

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....h regard to the presence or absence of mens rea while imposing penalty. All these situations are not available in the present case. The Commissioner (Appeals), in the assessee's appeal, by his Order-in-Appeal No. 86/2006 dated 23-5-2006, has clearly upheld the availment of Cenvat credit on Cranes, which has not reached the factory. This finding of the Commissioner (Appeals) has not been challenged....